Cai Gui Chen v. Filip

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2009
No. 07-60681
Summary Calendar Charles R. Fulbruge III
Clerk
CAI GUI CHEN,
Petitioner,
v.
MARK FILIP, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A96 278 637
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Cai Chen, a citizen and native of the People’s Republic of China, filed a pe-
tition for review challenging the dismissal by the Board of Immigration Appeals
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-60681
(“BIA”) of his appeal of the decision of the immigration judge (“IJ”) that denied
asylum, withholding of removal, and relief pursuant to the Convention Against
Torture (“CAT”). Because the BIA relied on the IJ’s decision, we may review the
IJ’s factual findings and conclusions. Mikhael v. INS, 115 F.3d 299, 302 (5th
Cir. 1997). We will uphold the BIA’s factual findings if they are supported by
substantial evidence. Ozdemir v. INS, 46 F.3d 6, 7 (5th Cir. 1994).
Chen argues that the IJ erred in relying on a consular investigative report
that determined that a subpoena ordering Chen’s appearance in court for a viola-
tion of the one-child policy was fabricated. The subpoena was submitted to Chin-
ese officials to verify its authenticity. Chen argues that the report did not pro-
vide detailed information about the investigation and that the officials could
have deemed the subpoena fraudulent to frustrate his asylum claim.
The subpoena pertained to the coercive family planning measures prac-
ticed in the People’s Republic of China, which are commonly relied upon as a ba-
sis for an asylum application. A person who is forced to undergo involuntary
sterilization “shall be deemed to have been persecuted on account of political
opinion.” 8 U.S.C. §§1158(b)(1), 1101(a)(42). To obtain eligibility for relief, the
spouse of a person who is forced to undergo sterilization must show that he has
suffered past persecution or has a well founded fear of future persecution on
account of his resistence to the coercive population control program. See Matter
of J-S, 24 I&N Dec. 520, 542 (BIA 2008); Shi Liang v. U.S. Dep’t of Justice, 494
F.3d 296, 309-10 (2d Cir. 2007).
The Chinese government could have inferred that, in seeking authentica-
tion of the subpoena, Chen was seeking asylum based on the forced sterilization
policy. The report did not provide sufficient detailed information for a determin-
ation of its reliability. It did not reveal the names or positions of the individuals
who performed the investigation or what steps were taken to determine that the
document was fabricated. There is no indication that the person who prepared
the report had any personal knowledge of what had occurred during the investi-
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No. 07-60681
gation. The report that the document was fabricated was not sufficiently relia-
ble to support the adverse credibility finding that admittedly went to the heart
of Chen’s claim. See Lin v. Gonzales, 459 F.3d 255, 268, 270-72 (2d Cir. 2006).
Chen argues that the IJ’s other adverse credibility findings should not
have been relied upon in denying his claims. Chen contends that he provided
specific facts to prove his refugee status and that trivial inconsistencies and
omissions in his testimony should not result in an adverse credibility finding.
Although we will not ordinarily review credibility findings, we will not uphold
findings unsupported by the record or based on pure speculation or conjecture.
Mwembie v. Gonzales, 443 F.3d 405, 410 (5th Cir. 2006). An adverse credibility
determination still “must be supported by specific and cogent reasons derived
from the record.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
The IJ’s and BIA’s heavy reliance on the absence of testimony from family
members living in the United States is misplaced, because there was no evidence
that these individuals had personal knowledge of the forced sterilization of
Chen’s wife or of Chen’s confinement suffered as a result of violating the one-
child policy. The BIA did not appear to consider Chen’s wife’s affidavit stating
that she was forced to undergo sterilization and that her husband was incarcer-
ated for violating the one-child policy. The IJ and the BIA ignored the IJ’s deter-
mination that Chen’s testimony on the essential facts supporting his claim was
consistent. The BIA’s decision must reflect a meaningful consideration of the
relevant substantial evidence supporting an alien’s claim. Abdel-Masieh v. U.S.
INS, 73 F.3d 579, 585 (5th Cir. 1996).
The IJ’s suspicion that the Chen family came to the United States for econ-
omic reasons only was not based on record evidence and thus did not constitute
substantial evidence. Mwembie, 443 F.3d at 410. The finding that Chen gave
inconsistent testimony about whether he or his sister had personally received
some documents from a courier addressed a trivial matter that had no bearing
on the issues. In light of the questionable reliability of the report that the sub-
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No. 07-60681
poena issued to Chen was fabricated and of the fact that the inconsistencies
relied on by the IJ and BIA were not central to the asylum claim, the BIA’s de-
termination that Chen was not entitled to asylum is not supported by substan-
tial evidence in the record. See Lin, 459 F.3d at 268-72; Zhang, 432 F.3d at 344.
Chen claims that the IJ’s ruling on the CAT claim was erroneous because
the IJ relied solely on the denial of his asylum claim. To succeed on this claim,
Chen “must meet his burden of showing that more likely than not he would be
subjected to ‘torture’ upon his return.” Ontunez-Tursios v. Ashcroft, 303 F.3d
341, 354 (5th Cir. 2002) (citation omitted). Chen testified that he feared being
returned to jail or being compelled to pay more fines if he is returned to the
People’s Republic of China. He did not present any evidence that he would be
subjected to an extreme form of cruel and inhuman treatment. See 8 C.F.R.
§ 208.18(a)(1), (2). Even assuming that he is entitled to asylum, there was sub-
stantial evidence to support the denial of the CAT claim. See Efe v. Ashcroft, 293
F.3d 899, 907 (5th Cir. 2002).
In his brief, Chen has not addressed the denial of his eligibility for with-
holding of removal. Thus, he has abandoned that claim on appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Calderon-Ontiveros v. INS, 809
F.2d 1050, 1052 (5th Cir. 1986).
Chen argues that the United States Government breached the confidenti-
ality owed to an asylum applicant when it submitted the document to the Chin-
ese government. Chen did not make this argument in his appeal to the BIA.
This court may review a final order of removal only if the alien has exhausted
all administrative remedies. Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir.
2007). This claim is not subject to review.
Chen contends that the IJ and BIA erred in finding that his asylum peti-
tion was untimely filed. Under 8 U.S.C. § 1158, an alien seeking asylum must
file an application for asylum within one year of his arrival in the United States,
absent a showing of “changed circumstances which materially affect the appli-
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No. 07-60681
cant’s eligibility for asylum or extraordinary circumstances relating to the delay
in filing an application within the [one-year] period.” § 1158(a)(2)(B), (D). Nei-
ther the IJ nor the BIA addressed the timeliness of Chen’s asylum application
in their second decisions. This court cannot review issues that have not been ad-
dressed by the administrative agency. Eduard v. Ashcroft, 379 F.3d 182, 196
(5th Cir. 2004).
The case is remanded to the BIA for consideration of the timeliness of the
asylum application. If exceptional circumstances are found that justified the
late filing, the asylum claim should be reconsidered, including the evidence of
Zhang’s affidavit and the subpoena notice. The BIA should also take into consid-
eration Matter of J-S, 24 I&N Dec. 520, 542 (A.G. 2008).
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.
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